On January 7, 2016, the Northern District of Illinois ruled on a motion to dismiss a 10-count complaint applying the law of all 50 states and the District of Columbia in a suit against manufacturer Rust-Oleum. The 40 putative class plaintiffs hail from 27 states in this multi-district, consolidated litigation. The suit alleges that a Rust-Oleum product – Deck & Concrete Restore – contains latent defects that result in bubbling, chipping or other premature failure. Rust-Oleum moved to dismiss, asserting what appears to be every conceivable pleading defect, jurisdictional issue and structural claim problem. The 91-page opinion painstakingly trudged through the arguments. On balance the majority of the rulings favor the plaintiffs, finding arguments premature or fact-driven. Among the debris, however, Rust-Oleum prevailed on a few fronts. First, plaintiffs alleged that Restore’s limited warranty was unenforceable because the limitations were not conspicuous. Rust-Oleum argued that damage limitations need not appear conspicuously on a limited (as opposed to a full) warranty. The court agreed, finding that the warranty was clearly labeled “limited,” precluding application of the Magnuson-Moss Warranty Act.

The court also adopted Rust-Oleum’s arguments that the plaintiffs conflated the meaning of “ordinary” (i.e. the normal use of a product) and “particular” (i.e. a special purpose plaintiffs may have desired the product to fill) purposes, which gutted their fitness-for-a-particular-purpose claim. The court rejected plaintiffs’ attempt to claim resurfacing the deck was the ordinary purpose while protecting it was its particular purpose, calling it “a distinction without a meaningful difference.” Also dismissed were a subset of fraudulent concealment claims as plaintiffs failed to sufficiently allege a duty to disclose. Lastly, the court dismissed several claims because the plaintiffs simply failed to respond. Thus, Rust-Oleum is left holding a mixed bag. After what appears to be extensive briefing – and certainly hundreds of hours of work – the suit will proceed to the class certification stage. One must ask: is peeling off a few claims worth the effort?